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“I feel so sad about it,” she remembers. In her dreams, “I’m begging

the doctor, ‘Don’t do it.’” In 2011, doctors performed a cesarean

section on Rinat Dray, a 32-year-old, religious mother of two with-

out her consent. Dray adamantly refused a cesarean throughout

her labor, she told us in an interview, but “The [hospital] manager

said, ‘Take her... to C-section. We got permission. ...Take her to the

room for the C-section.’” Doctors wheeled her into the operating

room, told her to be quiet, and performed a cesarean. The baby was

healthy, but during the surgery the physician lacerated Dray’s blad-

der, requiring extensive surgical repair. Dray’s malpractice lawsuit is

ongoing.

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25S P R I N G 2 0 1 7 c o n t e x t sContexts, Vol. 16, No. 2, pp. 24-29. ISSN 1536-5042, electronic ISSN 1537-60521. © 2017 American Sociological Association. http://contexts.sagepub.com. DOI 10.1177/1536504217714259.

To study forced and coerced cesareans, we searched for

cases like Dray’s in LexisNexis and the National Advocates for

Pregnant Women’s (NAPW) online case file. We found ten

between 1990 and 2014 and were able to interview Dray and

Jennifer Goodall, as well as two of the attorneys, Michael Bast

(Dray’s attorney) and Colleen Connell (Tabita Bricci’s attorney),

involved in forced C-section cases. We also interviewed three

attorneys with Birth Rights Bar Association (BRBA), Deborah

Fisch, Susan Jenkins, and Indra Lusero; NAPW senior staff attor-

ney Farah Diaz-Tello; and President of Improving Birth Dawn

Thompson.

The low number of published cases is partly a result of an

exceptionally small fraction of court cases being published and

thus accessible on LexisNexis, but it also reflects the high bar to

entry into the legal system for these types of cases. Even so, we

were surprised at how few cases we found:

advocates and attorneys we’d interviewed

had told us that instances of coerced and

forced cesareans were common. For exam-

ple, when we asked Dawn Thompson how

often she receives calls from women in

such situations, she answered, “Oh, every

day.” Similarly, Michael Bast told us, “We’ve heard many times

where women have said, ‘I was forced to have a C-section.’”

Although statistics are unavailable and neither Bast nor Thomp-

son can indicate the exact frequency with which they receive

requests for help with lawsuits, we believe we’re just exposing

the tip of the iceberg.

Forced and coerced cesareans are situated within a larger

trend: an overuse of cesareans in the U.S., a trend coauthor

Theresa Morris wrote about in her book Cut It Out. The proce-

dures accounted for 32% of U.S. births in 2015. The technique

is associated with higher rates of maternal and fetal morbidity

(injury) and mortality (death) than vaginal deliveries—that is, it

doesn’t lead to better maternal or fetal outcomes. Instead, the

rise of the C-section is tied to organizational and legal impera-

tives. Specifically, physicians cannot know for certain whether a

cesarean will lead to better outcomes than a vaginal birth, but

they have learned through medical-legal conferences and court

proceedings that they are less likely to be sued for malpractice

if the baby is born by cesarean. This lowers doctors’ thresholds

in choosing a cesarean.

Although typically a woman’s “right to choose” is associ-

ated with abortion, not childbirth, it is instructive to think of

both situations in a broader context of women’s bodily integrity.

Choice is hard won in childbirth because the cultural context

dictates that pregnant women should sacrifice everything for

the fetus. Thus, a pregnant woman who makes a decision that

authorities deem is not in the fetus’s best interest—for example

refusing a cesarean section—may be deemed incapable of

making decisions about the birth. Her “choice” never really

existed. Our research reveals that a woman’s right to bodily

integrity and decision-making, seemingly sacrosanct in the letter

of the law, is frequently challenged by medical providers when it

comes to childbirth. Women’s right to refuse unwanted surgery

buckles under the weight of cultural pressures and legal and

organizational processes.

The rise of the C-section is tied to organizational and legal imperatives, not maternal and fetal outcomes.

Rinat Dray, forced into having a cesarean. Michael Bast, Attorney, Silverstein & Bast, represents Rinat Dray.

Colleen Connell, Executive Director, American Civil Liberties Union of Illinois, represented Tabita Bricci.

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coercion tactics in the hospital The most coercive organizational tactic in this realm is

when physicians seek court orders to compel women to have

cesareans. This happened to Laura Pemberton (Pemberton

v. Tall ahassee Reg’l Med. Ctr., 66 F. Supp. 2d 1247 (N.D. Fla.

1999)). Details in the published court case indicate that Pem-

berton wanted to give birth at home, attended by a midwife.

During labor, she became dehydrated and went to the hospital

for IV fluids. When she realized the doctors intended to perform

a cesarean, she left. The hospital’s attorney called the state’s

attorney, who contacted a judge who sent an ambulance and

sheriff to Pemberton’s home to return her to the hospital. A trial

was conducted in the operating room. Pemberton lost and was

forced to have a cesarean.

Often, coercive organizational tactics lead women to acqui-

esce without a court order. As Colleen Connell, Tabita Bricci’s

attorney, explains, “Much of the time for completely understand-

able reasons the woman... acquiesces without a formal court

matter being required because she’s at term, ...she’s medically

stressed, and... [it] is just more than she can handle. …[S]he just

sort of says, ‘I just can’t fight. I’m just gonna give in.’”

Another coercive practice used in hospitals is the threat of

Child Protective Services (CPS). It’s so common that BRBA attor-

ney Lusero was at a loss in our interview: “I’m actually trying

to think of a situation where that wasn’t part of the coercion.”

According to NAPW attorney Diaz-Tello, this type of coercion

usually takes the form of a physician or nurse’s telling a woman,

“So if you don’t acquiesce at this point, then we’re gonna call

in child services that will then take the baby away.” When she

refused a cesarean, Dray said, “[The physician] started using

scare tactics. He said, ‘If you’re not going to sign the form for

the C-section, ...the state is going to take your children.’”

Doctors also threatened Jennifer Goodall with CPS. Goodall

wanted to deliver her fourth child vaginally (she’d had three

prior cesareans). She found a supportive physician, but the other

physician in the practice was not supportive. Goodall told us of

meeting with the second physician, “She seemed to basically tell

us that there’s no way that we could have a vaginal birth after

three cesareans. That it was basically murdering my baby and

that it was dangerous and that she wouldn’t support it.” Shortly

after that meeting, Goodall received a letter from the CFO of the

hospital, threatening to contact the Department of Children and

Family Services about her refusal to have a cesarean. Goodall

attempted a home birth, but went to a different hospital when

her pain became unbearable. She remembered, “The nurse on

call said that I needed to have a C-section—that no doctor would

see me or take care of me. ...And at that point, I was in so much

pain that I agreed. It was basically like being tortured.” The threat

of CPS remained. Goodall was blunt: “I didn’t fight because I

knew that [CPS] would be an issue ...I already had that fear put

into me.” Physicians delivered a healthy baby boy by cesarean.

The threat of CPS isn’t an empty one. Three of the ten

cases we identified involved a mother appealing the loss of

her parental rights with her refusal of a

cesarean used as direct or circumstantial

evidence of neglect or abuse: (1) In re C.D.

(San Bernardino County Children and Fam-

ily Servs.) v. P.D., 2009 Cal. App. Unpub.

LEXIS 4953; (2) N.J. Div. of Youth and Fam-

ily Servs. v. V.M and B.G., in the matter of

J.MG., 974 A.2d 448 (N.J. Super. Ct. App.

Div. 2009); and (3) In the Matter of K.A.U.,

739 S.E.2d 627 (N.C. Ct. App. 2013)).

Other coercive tactics, such as “firing a patient,” refusing to

admit a patient, labeling a woman “non-compliant,” and using

the power of multiple doctors to bully a patient into submission

were present in the cases we studied. And coercion could be

subtler. According to attorney Lusero, “There are these extreme

cases of just blatant—basically, it’s violence. But then, I think,

there’s this whole other slew of situations ...that I think [are]

really scary [in which] people essentially could be having surgery

due to bureaucracies. ...All these micro decisions in the chain of

A woman’s right to bodily integrity and decision-making, seemingly sacrosanct in the letter of the law, is frequently challenged by medical providers when it comes to childbirth.

Dawn Thompson, President, ImprovingBirth

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decisions being made by people totally removed from the body.”

One bureaucratic issue deals with informed consent. Hos-

pitals may require patients to sign a blanket informed-consent

form upon hospital admission, including, for pregnant women,

consent for a cesarean. A patient’s not signing may lead to

the hospital staff’s refusing admission. Lusero laments, “A lot

of times I have to tell them, ‘You actually signed a consent

form when you got to the hospital saying that you consented

to this procedure.’” Another example is

around specific informed consent for a

cesarean. Bast, Dray’s attorney, told us that

when women come to him for legal advice

because they claim to have been forced to

have a cesarean, he asks, “‘Really? Forced?

Did you sign the consent forms?’ And they

say, ‘Yes, I signed the consent form, but

he made me sign it. I didn’t really want

to sign it.’” He concludes, “And then you

lose.” Further, interventions in birth, such

as induction of labor, epidurals, continuous

electronic fetal monitoring, augmentation

of contractions, strict time-lines—all of which make birth quicker

and more predictable for the hospital—also make cesareans

more likely. Diaz-Tello adds, “For some women ...a vaginal

delivery is not even posed as an option… VBAC [vaginal birth

after cesarean] or twins, a breech …It’s not what [women] want,

but they acquiesce.”

Coercive tactics including court orders are more commonly

applied to poor women, women of color, and immigrants.

For example, Goodall and Dray both received Medicaid, and

Bricci was a Romanian immigrant whose first language was

not English. This mattered, Connell explains, “[I]n… the real

world of doctor/patient relationships …you had an impatient

…doctor …who thought that he had an ignorant woman who

was selfishly putting some crackpot religious view ahead of his

assessment of the baby’s health. And [he] basically thought that

if he rattled the cage she’d back down and say, ‘Okay,’ and she

didn’t.” The court decisions we found frequently characterized

women’s fitness to make decisions by using implicitly classed

and raced language.

legality examined Forcing a woman to have a cesarean section is not legal

(see, e.g., a Supreme Court case, Cruzan v. Director, Missouri

Dept. of Health, 497 U.S. 261 (1990)). U.S. courts have repeat-

edly held that “a competent person has the right to refuse

medical treatment.” (In Re Baby Boy Doe, 632 N.E.2d 326

(1994)). This precedent rests on U.S. law’s historical protection

of “negative rights,” sometimes called “liberty,” which is the

right to be free from impositions, such as unwanted surgical

interventions. People cannot be forced to donate blood or bone

marrow to save someone’s life, let alone be forced to undergo

surgery. Why are cesareans different?

One factor is the difference between lower-level courts, or

“courts of first impression,” and appellate courts, which hear

cases on appeal from lower-level courts. Lower-level courts are

experts in dealing with a wide variety of factual situations that

require quick decisions. Appellate courts are experts in dealing

with issues of law and have the resources, lower caseloads, and

time to examine complex legal issues. Lower-level courts have

frequently ruled against women, but women who have sought

appeals of their forced cesareans have always won. According

to BRBA attorney Fisch, this is the difference between “the

law on the books and the law on the ground.” Unfortunately,

appeals rarely prevent a forced or coerced cesarean, and it can

be a lengthy and expensive process to appeal any case. As Fisch

explains, “The law deals better with these matters in retrospect.

But this isn’t the case where… someone has breached a contract

and you can make them whole again. …You’ve affected their

fertility. You’ve violated their human rights.”

The threat of calling Child Protective Services isn’t an empty one: Three of the ten cases we identified involved a mother appealing the loss of her parental rights with her refusal of a cesarean used as direct or circumstantial evidence of neglect or abuse.

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Farah Diaz-Tello, SIA Team Senior Council, Center on Reproductive Rights and Justice, University of California–Berkeley

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There are examples of this disjuncture in the court cases

we examined. For example, In re A.C., 573 A.2d 1235 (D.C.

1990) was won on appeal. From the published case, we learn

that Angela Carder was 26-weeks pregnant and had an inoper-

able lung tumor. She agreed to palliative treatment to prolong

her life until the fetus was 28 weeks, but her condition quickly

deteriorated and she lost consciousness. Doctors discussed

performing a cesarean with her family, at which point Carder

briefl y regained consciousness and said she did not want one.

Nevertheless, the hospital obtained a court order and performed

a cesarean. Both Carder and the baby died. Her family appealed,

albeit posthumously, and In re A.C. affi rms the right of a woman

to refuse a cesarean.

Another appellate judgment upholding women’s right to

refuse a cesarean is In re Baby Boy Doe. From the court case

and our interview with her attorney, we learn that Tabita Bricci’s

physician recommended a cesarean because Bricci was losing

weight and he feared the fetus was not receiving enough

oxygen. Bricci refused on religious grounds. The hospital lost a

petition to make the fetus a ward of the state and appealed. In

its decision, the court explained the fundamental rights at stake:

“If a sibling cannot be forced to donate bone marrow to save

a sibling’s life, if an incompetent brother cannot be forced to

donate a kidney to save the life of his dying sister, …then surely

a mother cannot be forced to undergo a cesarean to benefi t

her viable fetus.” Bricci vaginally delivered a healthy baby. Time

and again, it is clear that forcing or coercing women to have a

cesarean is not legal; it happens because women face barriers

both to accessing the legal system and within the system itself.

legal barriers The legal hurdles are similar whether the woman is fi ghting

a forced or coerced cesarean or redressing one. First, labor is an

all-encompassing process, and litigating during or imme-

diately after childbirth is mind-boggling. Goodall, for one,

has not attempted to redress her coerced cesarean. She

reasons, “I don’t know if I psychologically just don’t want

to go through that, or if I feel like I don’t have the time

because I have all of this chaos going on with moving

across the country [and] just having a regular relationship

with my husband and my four kids.” Second, fi ghting a surgery

that doctors claim is or was lifesaving challenges selfl ess expecta-

tions of women. Connell argues that cases of forced cesarean

illustrate the common societal belief that “a pregnant woman

owes a duty to the fetus that trumps every other interest or duty

to herself or to other beliefs.” Third, it is diffi cult for such women

to fi nd legal representation (likely another factor in why we

found so few court cases). During labor, there is time pressure.

The “underground railroad” of help (in BRBA attorney Jenkins’

words) may be diffi cult to access. To redress a cesarean, women

must enter the personal injury legal system, which often uses

the contingency system whereby attorneys take cases with little

or no payment in exchange for a percentage of the judgment.

Attorneys, thus, prefer winnable cases, and cases of forced or

coerced cesareans do not usually fi t this bill. Fisch explains, “The

problem... is that unless there is an injury to the baby or if the

mother’s dead, there aren’t damages suffi cient enough to cover

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The ongoing “Birth Survey” is part of the “Transparency in Maternal Care” project and supplements institutional and state- level statistics on birth care.

Coercive tactics including court orders are more commonly applied to poor women, women of color, and immigrants.

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Indra Lusero, Counselor at Law, President, Birth Rights Bar Association.

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the case [and] …the likelihood that you’ll win the case [is] very

small. …[I]n our legal system, we so clearly prioritize harms to

the fetus over harms to the mother.” Goodall gives life to this

observation when she tells us, “I was told by my legal counsel

that …the hospital’s …counsel basically said …they would rather

have a lawsuit against the hospital for …doing physical harm to

me for giving me a surgery against my will than having a litiga-

tion for something going wrong during my VBAC.” Women

with less economic and social power have an even harder time

accessing advocacy and attorneys.

solutions Even though the legal system is stacked against women,

women should not abandon the fight. In fact, according to attor-

neys we interviewed, only when women sue will physicians begin

to see a real medical-legal risk to performing forced and coerced

cesareans. It is important to remember that performing a forced

surgery is not legal. Women exerting agency within the legal

system is an essential part of putting a stop to these practices.

Especially for women facing an imminent threat of an

unconsented cesarean, there are also options outside the legal

system. Attorney Lusero shares that these non-legal solutions

tend to be quicker and more effective—likely because lower-

level court judges so often side with physicians in these cases.

But this solution requires that women exert agency, arriving

prepared to ask questions about and make requests for their

care. If they are unhappy with their treatment, they must know

and exercise their right to ask for a second opinion or more time

to make a decision, to refuse treatment, or to switch providers

or hospitals. Unfortunately, research has found that women are

often hesitant to challenge the authority of physicians, especially

during labor and birth.

Another non-legal solution is to make noise—lots of noise.

As with other social issues, the more media attention this issue

gets, the better. For example, to generate media attention about

Goodall, BRBA asked supporters to send roses to Goodall in care

of the hospital’s CFO, who sent Goodall the infamous letter. This

floral influx was widely covered by traditional media and shared

across social media, bringing unwanted attention to the hospital

and possibly putting others on notice.

Ultimately, the legal system should protect women’s rights

to make decisions about their own bodies. Educating physicians,

hospital administrators, attorneys, judges, and women about the

unconstitutionality of unconsented surgery is a necessary step

in accomplishing this goal. There must also be repercussions—

professional and personal—to those who trample on the right

of women to refuse surgery.

recommended readings Jeanne Flavin. 2009. Our Bodies, Our Crimes: The Policing of Women’s Reproduction in America. New York: NYU Press. Exam- ines how the law is used punitively against pregnant women.

Susan Irwin and Brigitte Jordan. 1987. “Knowledge, Practice, and Power: Court-Ordered Cesarean Sections,” Medical Anthropol- ogy Quarterly 1(3):319-334. Reviews nine cases of court-ordered cesareans.

Veronika E. B. Kolder, Janet Gallagher, and Michael T. Parsons. 1987. “Court-Ordered Obstetrical Interventions,” The New Eng- land Journal of Medicine 316(19): 1192-1196. Demonstrates the higher prevalence of court-ordered obstetrical interventions against poor women of color.

Lynn M. Paltrow and Jeanne Flavin. 2013. “Arrests of and Forced Interventions on Pregnant Women in the United States, 1973- 2005: Implications for Women’s Legal Status and Public Health,” Journal of Health Politics, Policy and Law 38(2):299-343. Tracks and describes cases in which pregnancy is used to deprive women of their physical liberty.

Terri-Ann Samuels, Howard Minkoff, Joseph Feldman, Awoniyi Awonuga, and Tracey E. Wilson. 2007. “Obstetricians, Health Attorneys, and Court-Ordered Cesarean Sections.” Women’s Health Issues 17(2):107-114. Examines characteristics of women against whom doctors and attorneys are most likely to seek court-ordered cesareans.

Theresa Morris is in the sociology department at Texas A&M University. She is the

author of Cut It Out: The C-Section Epidemic in America. Joan H. Robinson is an

attorney as well as a doctoral student in the sociology department and Associate

Director of the Holder Initiative for Civil and Political Rights at Columbia University.

She studies law, technology, and inequalities.

Jennifer Goodall, coerced into having a cesarean.

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